Rule 9 for mediation

Before the pandemic and before working from my dandy new home office, I don't think I ever saw a single YouTube video. Fortunately, or unfortunately, by now I have seen hundreds, some educational, some just entertaining. A few weeks ago I happened upon a popular YouTube philosopher of sorts, a Canadian psychologist by the name of Jordan Peterson. Dr. Peterson was espousing his 12 Rules of Life. Ordinarily, I shy away from anything titled "Rules for..." (unless it's "10 Rules for More Successful Mediation") but this one caught my eye and I spent some time watching Dr. Peterson explain his rules for living. Some were interesting, some not, but one really resonated with respect to mediation.

Dr. Peterson's Rule 9 pertains to conversations with other people. His rule is simple: Assume that the person you are listening to knows something you don't. Although Dr. Peterson is focused on what you might call "life lessons," his simple rule has important implications for mediation because it affects two vitally important mediation tasks: risk analysis and informed decision making. Decision making depends on having information. Risk analysis depends on accurately measuring risk based on the information.

Risk, in the context of litigated matters, comes in many forms. For example, in cases where there are factual disputes the resolution of which depends upon an assessment of credibility, the risk arises from the fact that your witnesses may not be believed. In cases where legal issues govern the outcome, the risk arises from the fact that a judge may decide the legal issue against you. And, in cases where economic considerations affect the outcome, the risk arises from the fact that the expense of the lawsuit may exceed the expected recovery or that collection might be impossible. Likewise, information comes in many forms, or at least, from many sources. The potential sources of information in a mediation are the mediator, opposing counsel, other parties or witnesses, and sometimes your own client. The unwillingness or inability to learn information from these sources severely impedes the process of risk analysis and informed decision making.

With this in mind, what might the mediator know that you don't? First, the mediator has the opportunity to hear both sides of the story and can share his or her perception of the strengths and weaknesses of the position of each side. Second, the mediator can directly assess credibility. Even though the mediator is not the trier of fact and the mediator is not "judging" the case, an effective mediator will always be good at assessing credibility. The mediator can share this assessment with the parties. Third, an effective mediator will have subject-matter expertise. The mediator can share this expertise and help the parties assess the legal issues. Fourth, the mediator will likely obtain information about the economics of the case, not only from the perspective of the cost to litigate the case, but also with regard to whether a judgment will be collectible. In short, there are usually many things that the mediator might know about the case that you don't know but need to know.

Likewise, as noted above, there are other potential sources of information. For example, at a recent mediation a factual issue was preventing the parties from making progress toward a settlement. The issue was whether a third party had repaired a particular part of a house that was sold to the plaintiff. We were able to get the third party on a conference call so that we could ask the question and everyone could hear the answer. The third party answered the question and it broke the logjam of the settlement -- because the parties and their lawyers understood that this third party knew something that they didn't know. Sometimes your own client has valuable information. In a recent construction dispute I raised the point with plaintiff's counsel that the cost of repair numbers didn't seem to be supported by checks and I asked the lawyer to ask her client about it. The lawyer became defensive, and said that she didn't need to ask her client -- she had already gone through the invoices and was satisfied that everything was in order. I asked her to please ask the client again. This time, the client told her that he had paid some unlicensed subcontractors in cash to perform the repairs, facts that had bad implications for the damages claim.

How does Dr. Peterson's Rule 9 come into play at mediation? It has to do with telling and hearing. So often in mediation the parties and their counsel wish to be heard, but they do not wish to hear. While the "telling" part of the mediation process is vitally important (for one thing, it may be the only opportunity that a party ever has to tell the story and have someone listen carefully), the "hearing" part is equally important. A recent case will illustrate. After a fair amount of time speaking with the defendant and his counsel it was clear to me that the client was going to have serious credibility issues in a case where her credibility was going to be the linchpin of the outcome. I took the lawyers aside to speak with them privately about my concerns. They immediately leaped to the defense of their client, saying things like: "You can't call our client a liar." The important thing is that they did not want to hear why I had this perspective on their client's credibility. They only wanted to tell me why she was a truth-teller. They were only interested in the telling, not the hearing.

If they had followed Peterson's Rule 9, they would have said something more like: "It's interesting that you have that perception. What about our client makes you think that she won't be believed by the jury?" I would have then told them that her story is illogical, she doesn't answer any of my questions directly, that she seems evasive, hostile and what she says when she finally answers a question just doesn't make sense. Had the lawyers followed Peterson's Rule 9, they would have understood that I knew something that they didn't know and they would have learned valuable information (as it happened, I eventually had the opportunity to explain that I wasn't calling their client a liar, but instead expressing a concern that the trier of fact might conclude that -- and we did have the chance to discuss my thoughts on the issue). That valuable information may have caused them to better evaluate the risk in the case.

In another case involving a claim of fraudulent non-disclosure, I expressed a concern about the damages claim because it was clear to me that the plaintiff's lawyer, through inexperience, was using the wrong measure of damages. The plaintiff's lawyer told me that he had thoroughly analyzed the claim and was confident in the chance of success. He was uninterested in hearing my concerns. If this lawyer had followed Peterson's Rule 9, he would have said something like: "Tell me why you are concerned about our damages theory." Or, "I know that you mediate lots of these kinds of cases, maybe you can share with me how you evaluate this claim." I would have been happy to do so, since the evaluation of the claim is an essential component of a risk analysis. Had the lawyer been more open to hearing and not telling, he would have been more able to see that his case had an essential weakness.

Dr. Peterson's Rule 9 has one more important relationship to mediation -- the telling of bad news. One of the challenges in mediation is telling people, both parties and lawyers, things that they don't want to hear. Parties and their counsel never like hearing the bad parts of a case -- they much prefer to focus on the bright shiny good parts of the case. But understanding the "bad part" information and assessing the risk that it presents is an essential mediation task. Thoughtful lawyers want to know what the mediator thinks about both the good and bad parts of the case. Instead of arguing with the mediator's risk analysis, these thoughtful lawyers welcome it -- and they say things like: "Let's hear what the mediator has to say," or, "We came to this mediator because of the mediator's experience in these kinds of cases, let's listen to the mediator's analysis." In taking this approach, these lawyers are, in essence, following Rule 9, even though they likely have never heard of it.

Dr. Peterson probably never thought about the mediation process when he came up with his Rule 9, but it turns out to be quite important to successfully resolving cases. The next time you find yourself in a conversation in mediation, whether with the mediator, opposing counsel, a witness or your own client, think about what they might know that you don't know -- that information is likely to help you and your client reach a better result. 